Adv. Dilip Joshi has been working in the Criminal Side of Practice at Gujarat High Court and Sessions Court at Bhuj, Anjar, Gandhidham and Bachau for more than 34 years. In this Article, he has focused on the Confessional side of Section 164 CRPC.

Introduction

Section 164 of the Code of Criminal Procedure is a provision by which confession and statement of the witnesses are recorded. Sub Section (1) of the Section 164 CPC empowers any Metropolitan Magistrate or Judicial Magistrate to record any confession or statement made to him during the course of an investigation under this irrespective of the fact whether or not he has jurisdiction in the case at any time afterwards before the commencement of the inquiry or trial. This provision also puts and embargo that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

Thus section 164 CRPC provides for two very important terms in criminal jurisprudence and the framing of language for both these terms is very interesting and also important. This has also been interpreted by the Supreme Court and various High Courts and the water under these provisions is almost settled. These two terms are “Confession” and “Statement”.

Dealing with the first phase used under section 164 CRPC, we can say that Confession is the admission of guilt, stating or suggesting an inference as to guilt by an accused made in custody. According to Justice Stephen, a “confession”, is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.

A declaration made by the accused confessing his guilt is known as a confession. As a result, the statement won't constitute a confession if the maker does not implicate himself. Additionally, a mixed statement that, while containing certain confessional statements, will nonetheless be accepted and result in acquittal is not a confession. Therefore, a statement that contains false self-exculpatory information that would render the offense unconscionable cannot be considered a confession. This is the case because a confession must be accepted as a whole or rejected as a whole, and the court lacks the authority to accept merely the exculpatory element (statement of self-defense) and reject the incriminating portion.

Subsection (2) of section 164 CRPC says that the Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

Sub Section (3) of section 164 CRPC provides that If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.

In the case of State of NCT of Delhi v. Navjot Sandhu, (Appeal (crl.)  373-375 of 2004) the Supreme Court observed that Confessions are considered highly reliable because no rational person would make an admission against his interest unless prompted by his conscience to tell the truth. "Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law”

Before acting on a confession, the court must be certain that it was given voluntarily and voluntarily. A confession obtained through coercion, the promise of advantage, compensation, or immunity, or through force, fear instilled by violence or threats of violence, cannot be used as evidence against the confession maker. The confession needs to have been made fully aware of its nature and its effects. The court should exclude the confession from consideration if it has any reason to believe that these requirements have not been met. At the pre-trial stage, the authority recording the confession, such as a magistrate or another statutory functionary, must also consider whether the accused came forward to make the confession under no coercion, fear, or expectation of reward from those in positions of authority. The Indian Evidence Act has prohibited the admission of a confession given to the police officer, taking into account the stark fact that the accused was engulfed in a condition of fear and panic, anxiety, and despair while in police custody.

A helpful provision in the Cr.P.C. is Section 164, which specifies precautions the Magistrate must take when recording a confession to ensure its voluntariness and the accused's placement away from the danger or influence of the police. A legal overview of the evidential value of retracted confessions, which is a common occurrence in our nation and elsewhere, is necessary before we turn our attention to the more specific characteristics of confessions under POTA.

In the case of Bharat Vs. State of UP reported in 1971 (3) SCC 950 Hidayatullah, C.J., speaking for a three-Judge Bench observed that:

"Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after-thought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after-thought and that the earlier statement was true.

In the case of Mahabir Singh v. State of Haryana (Appeal (crl.) 471 of 1998) court observed that, Where the Magistrate fails to explain to accused that he was not bound to make the confession and that if he did so, such confession might be used as evidence against him, that confession so recorded, cannot be taken into consideration.

The Magistrate must be certain that the accused person who confesses was not subjected to coercion or force. Any indication of the accused's identity can undermine the confession's voluntariness. When was determined to be inadmissible under the section as well as other provisions of the Indian Evidence Act like sections 21 & 29.

Bar against police pressure

As was mentioned above, Subsection 3 of Section 164 CRPC prevents authorities from applying coercion to a person who refuses to confess. When the accused was held in judicial custody for more than two days prior to confessing, it was determined that the time was adequate to remove any fear or influence from the police, if any, and that the confession could thus be given voluntarily by the defendant. It is not required that 24 hours pass between the initial interrogation and the recording of the confession. The Magistrate's failure to reassure the accused that he wouldn't be returned to police custody in the event of his refusal to make the confession did not lead a confession to be deemed invalid.

Manner of recording Confession, signatures etc.

In accordance with subsection (4) of section 164, the confession should be documented in accordance with the procedures outlined in section 281, and it must be signed by the individual confessing. The Magistrate will next write a memo in response to this confession. The Magistrate cannot simply sign a written directive that has been given to him. This will be against the letter of the law. It can be stated that the voluntary confession that was accurately recorded in a foreign language was irregular. The entire confession needs to be recorded. Before the confession can be used, it must be demonstrated that it was made voluntarily.

The accused must sign the confession in order for it to be valid. If it isn't, it won't be allowed as evidence, the commission wouldn't need the confession, and the irregularity can be fixed in accordance with section 463. When a confession is made in court to the officer handling the case at the time of trial, the accused does not need to provide an attestation.

The confession that is made without a note stating that it is voluntary is illegal and cannot be used as evidence. The statement of an accused is inadmissible as evidence even though it was recorded in the magistrate's presence but not in compliance with section 164 of the Criminal Procedure Code.

The decision to record or not record a confession is up to the magistrate. He is not required to record this at all times. If he chooses to record it, he must abide by the following four rules: It must be documented and signed in accordance with section 281, then forwarded to the relevant Magistrate.

He must first ensure that the confession is being made voluntarily, then he must warn the accused that they are not required to make one and put a memorandum to the bottom of the confession.

Transfer of confession to Magistrate of jurisdiction

Section 164's final requirement is stated in subsection (6), which specifies that the Magistrate who records a confession or statement under this section must send it to the Magistrate who will conduct the investigation or trial.

Evidentiary value of confession

Despite not requiring everything, Section 164 makes it clear that before recording the confessional statement, a preliminary, thorough inquiry must be made of the accused about the custody from which he was produced and the treatment he had received in that custody in order to ensure that there is no room for doubt regarding any type of extraneous influence originating from a third party.

The Magistrate has the duty to question the accused who is confessing as to why he wishes to make a statement that will undoubtedly harm his interests during the trial. The maker of the confession must be given adequate time to consider.

He should also be guaranteed protection from any suspected torture or police coercion if he refuses to make a confessional statement.

Even a judicial confession that was not given voluntarily is untrustworthy; moreover, if such a confession is retracted, the conviction cannot be founded on such a retracted judicial confession. Failure to comply with Section 164 Cr.P.C. renders the confession untrustworthy.

The accused should be kept totally free of police interference during this period of thought. The judicial official charged with recording confessions must use his judicial mind to determine and satisfy his conscience that the accused's statement is not the result of any outside influence on him. No police officer shall be present in the court during the recording of the accused's statement.

Confession is a weak type of evidence, and confession of a co-accused is one of the weakest. Before convicting an accused individual based on a confessional statement, the Court always seeks corroboration from the confessional statement.

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1. Bharat Vs. State of UP reported in 1971 (3) SCC 950
2. Mahabir Singh v. State of Haryana (Appeal (crl.) 471 of 1998)
3. State of NCT of Delhi v. Navjot Sandhu, (Appeal (crl.)  373-375 of 2004)
4. Code of Criminal Procedure

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